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Judges who reveal bias on a case should be disqualified

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By MARTIN DYCKMAN, Times Associate Editor

© St. Petersburg Times
published July 14, 2002

TALLAHASSEE -- The Christian Coalition and other ax-carrying interest groups in Florida are rejoicing over a U.S. Supreme Court decision, in a Minnesota case, that said judicial candidates can't be stopped from talking about such controversial issues as abortion and gun control. The majority opinion did not overturn a separate rule which, like one in Florida, bars candidates from saying how they would decide cases. But as the dissenters said -- with much the better argument -- that is a distinction without a difference.

"Uncoupled from the "Announce Clause,' the ban on pledges or promises is easily circumvented," wrote Justice Ruth Bader Ginsburg. "By prefacing a campaign commitment with the caveat, "Although I cannot promise anything,' or by simply avoiding the language of promises or pledges altogether, a candidate could declare with impunity how she would decide specific issues . . .

". . . A candidate who campaigns by saying "If elected, I will vote to uphold the legislature's power to prohibit same-sex marriages' will feel scarcely more pressure to honor that statement than the candidate who stands behind a podium and tells a throng of cheering supporters: "I think it is constitutional for the legislature to prohibit same-sex marriages.' Made during a campaign, both statements contemplate a quid pro quo between candidate and voter . . . Both convey the impression of a candidate prejudging an issue to win votes."

That is a perfectly proper way to elect legislators, but it is the worst of all possible ways to pick judges. Nobody expects judges to come to the bench without personal opinions (as Raoul Cantero III, Florida's new Supreme Court justice, insists he does with respect to the death penalty) but it is assumed -- or hoped, anyhow -- that they will put the law, the Constitution and the facts ahead of their own biases. That's harder to do if they have shot their mouths off for votes.

Though Florida's Judicial Ethics Advisory Committee issued a statement saying the Minnesota decision means nothing here, hardly anybody else believes that. In one closely watched case, the state Supreme Court will soon decide whether it protects an Escambia County judge, Patricia Kinsey, who is fighting a proposed $50,000 fine for a nasty campaign against an incumbent she derided as "Let 'Em Go Green."

And, of course, the interest groups will be firing up their candidate questionnaires.

They had better be careful, lest they elect judges whose promises will be useless to them. The Supreme Court may have stopped states from gagging candidates, but not from disqualifying biased judges.

Florida has some colorful history on that.

In 1940, Philip La Russa and three other men alleged to be in the Tampa gambling rackets were facing trial before Criminal Court Judge John R. Himes. When he refused to disqualify himself, they appealed.

They claimed that at one campaign appearance, Himes had said, ". . . What the people want is a judge who will put people like Philip La Russa and his associates away in Raiford." They also had affidavits asserting that Himes had been heard to say he would not let the La Russa gang "get a license for gambling by a fine" but he would instead "put them in Raiford where they belonged."

It never was proved whether Himes had said anything of the sort. The Tampa Morning Tribune editorialized that, according to its reporters, "Judge Himes did not in any speech mention the name of one of the defendants."

But the Florida Supreme Court responded as if he had and ordered Himes to step aside. All that mattered, it said, was that the defendant had a "well-grounded fear that he will not receive a fair trial . . ."

It was one of Justice Glen Terrell's famously florid opinions.

". . . If conclusively shown that the seed of fear was planted and the facts related give a reasonable man ground for belief that the judge is prejudiced, that is sufficient. . . " he wrote. The situation was typical, he said, of how little a judicial candidate can talk about "on the hustings . . .

"He disqualifies himself to sit in any cause affecting the issue he advocates. His oath of office limits his declarations from the stump. . . . The man in the moon and the weather man are about the people he can with impunity talk about without attitudinizing himself. He may indulge in a few pleasantries at the expense of Uncle Remus and the cops but that is the limit of his tether."

The La Russa case is still Florida's leading precedent on the disqualification of judges. Candidates and interest groups should take careful note.

Terrell wrote that "the makers of the Federal Constitution realized the utter futility of judges engaging in political combat" and galvanized them from it by making them appointive for life."

Two years ago, Florida voters rejected even the modified approach that called for appointing trial judges who would run for re-election without opponents. But at least the interest groups that cheered that outcome will not have many candidates to work over. Of the 246 circuit judgeships up for election this year, all but 32 are uncontested.

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